Feeds

Juries: The only reason ANYONE understands patent law AT ALL

Give us honest men, not a parcel o' wiggy land-sharks

  • alert
  • submit to reddit

SANS - Survey on application security programs

Andrew's Mailbag Apple's recent mobile patent trial victory over Samsung has raised the spectre of justice being done behind closed doors by self-appointed elites.

Today, it's the norm for juries to decide patent disputes. Jury trials oblige the parties to speak in plain language. And there's plenty of wiggle room for cantankerous citizens to disobey "expert" advice. For example, the Californian jury that awarded Apple billion-dollar damages in the Samsung dispute nevertheless threw out several of Apple's allegations - eviscerating its claims over the iPad.

Yet after the verdict, intellectual property experts saw the opportunity to exclude the public. In the aftermath, we noted that IPKat, a UK-based blog written by lawyers and academics, pondered: "Does this jury verdict strongly argue against the case for jury trials?"

And it was joined by The Economist magazine, which proclaimed:

Specialised courts for patent disputes should be established, with technically minded judges in charge: the inflated patent-damage awards of recent years are largely the result of jury trials.

What's wrong with this picture? We're grateful to Professor Robin Feldman at Hastings College of Law at the University of California, in San Francisco, for providing us this extract from her 2009 book The Role of Science in Law. It includes a paper entitled Plain Language Patents, which you can read via the SSRN network here. Professor Feldman highlighted these passages:

If legal actors cannot understand the full implications of the terms being used, they cannot do an adequate job of considering the legal questions surrounding the precedents. They are, in essence, flying blind. . . .it is important to note that most legal actors have no scientific expertise. District court judges charged with patent interpretation are unlikely to have any scientific expertise  The same is true for the jurors, who must decide other elements of patent cases. Even the specialized judges of the Federal  Circuit may have little knowledge or experience relevant to a particular case. Most Federal Circuit judges have neither a technical background nor patent experience when they are appointed to the bench.

Parroting technical language can obscure an inability to grasp the full meaning and implications of an issue. It creates the temptation to engage in a form of sophistry, to speak in . . . a seductive, jargon-filled way that leads us to believe we have mastered something deep for having learned to use the jargon. We cannot effectively engage in the process of interpretation and adaptation unless we are speaking a common language. Jargon is also the perfect vehicle for strategic behavior. It allows legal actors to use broad open-ended language and then argue later that whatever position they wish surely falls within the language chosen.

Most importantly, plain language allows judges to more easily understand the implications of their decisions and puts pressure on judges to take responsibility for those decisions. In particular, for judges who do have technical expertise, a plain language system avoids the temptation to suggest “we in the club know it when we see it, and that is good enough.” The requirement for clear and plain communication keeps legal actors faithful to supportable logic rather than subject to the whims of prejudice masked in obscurity.

The goal should be to encourage translation of scientific terms into understandable concepts, rather than to indulge jargon by creating its own forum.

"Prejudice masked in obscurity" - what a great phrase.

When they receive exclusive economic rights, inventors and creators get a quite unique privilege, and they get powerful protection in return. It doesn't seem unreasonable that disputes over these privileges are heard by their peers - by us. And it's telling who seeks to turn a drama into a crisis - and for what undemocratic ends. ®

High performance access to file storage

More from The Register

next story
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
Don't let no-hire pact suit witnesses call Steve Jobs a bullyboy, plead Apple and Google
'Irrelevant' character evidence should be excluded – lawyers
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
Alphadex fires back at British Gas with overcharging allegation
Brit colo outfit says it paid for 347KVA, has been charged for 1940KVA
Jack the RIPA: Blighty cops ignore law, retain innocents' comms data
Prime minister: Nothing to see here, go about your business
Banks slap Olympus with £160 MEEELLION lawsuit
Scandal hit camera maker just can't shake off its past
prev story

Whitepapers

Designing a defence for mobile apps
In this whitepaper learn the various considerations for defending mobile applications; from the mobile application architecture itself to the myriad testing technologies needed to properly assess mobile applications risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Securing web applications made simple and scalable
In this whitepaper learn how automated security testing can provide a simple and scalable way to protect your web applications.